State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence,
unless otherwise indicated.

Dear Ms. Boice:

I have received your letter of December 27 in which you sought
an advisory opinion concerning access to records.

According to your letter, several months ago you requested
town tax rolls from Ulster County that were prepared in the 19th
century. The request was denied "on the grounds the records are
sealed and too fragile for viewing." You were also informed that
the records in question will likely be microfilmed in 1994.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all
agency records, and §86(4) of that statute defines the term
"record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."
Based upon the foregoing, tax rolls maintained by an agency would
in my view constitute "records" subject to the Freedom of
Information Law, irrespective of their age.

Second, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in section 87(2)(a) through (i) of the Law. There
appears to be no question that the records in question fall within
the scope of public rights of access. Further, §87(2) of the Law
states that accessible records should be made available for
inspection and copying.

Third, there are also provisions of law that deal with the
custody, preservation, retention and disposal of records. For
example, §57.25 of the Arts and Cultural Affairs Law, which is
part
of the "Local Government Records Law", states in part that:

"It shall be the responsibility of every local
officer to maintain records to adequately
document the transaction of public business
and the services and programs for which such
officer is responsible; to retain and have
custody of such records for so long as the
records are needed for the conduct of the
business of the office; to adequately protect
such records; to cooperate with the local
government's records management officer on
programs for the orderly and efficient
management of records including identification
and management of inactive records and
identification and preservation of records of
enduring value; to dispose of records in
accordance with legal requirements; and to
pass on to his successor records needed for
the continuing conduct of business of the
office."

As such, local government officials have a responsibility to
"protect" and ensure the "preservation of records of enduring
value". Further, having spoken with a County official concerning
your request, I was informed that handling of the records sought
would cause their disintegration. Consequently, it is possible
that a review of the records would be less than valuable to you,
and that the records would be unusable in the future.

From my perspective, there is a conflict between laws in this
instance. On the one hand, I believe that the records are
accessible under the Freedom of Information Law; on the other hand,
the County is obliged to preserve them, and acceding to your
request would apparently be concomitant to their destruction. I
cannot conjecture as to the response that might be rendered by a
court in this unusual circumstance. However, it is possible that
a review of more recent and usable records would suffice for your
purposes. If that is so, it is suggested that you seek to review
other records that may be equally valuable to you.

I regret that I cannot be of greater assistance. Should any
further questions arise, please feel free to contact me.